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tv   [untitled]    August 11, 2013 11:00pm-11:31pm PDT

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>> now the session. >> commissioner andrews? >> present. >> commissioner renne? sfe. here. >> commissioner hur is excused as is commissioner studley. >> >> first off, any public comments? matters appearing on the agenda or not appearing on the agenda at this time? >> yes. good afternoon commissioners and director st. croix, my naik is dr. derek kur sxim a whistle blower. you are violating the city charter. specifically, article four of the campaign and governmental conduct code. it is also known as the whistle
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blower protection ordinance. you are mandated to annually report four things. one, the number of complaints received, two, the types of complaints, types of conduct complained about. >> three, the number of complaints that you refer out to other agencies, four, the number of investigations you conduct. this assures the public that complaints coming in are matched by the complaints going out. you have not done this since 2005. your annual reports only note the number of cases quote resolved, unquote. not investigated. the director's monthly report deleted all of this data in 2011. now, the public has no idea how
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many complaints are coming in, how many go out, and how many are buried in between. since you are responsible for reviewing claims of whistle blower retaliation, real advertising should be listed as a type of conduct complained about. but it isn't. you are violating article four. please pay attention to this. thank you for listening. >> here is my statement. >> thank you, dr.. kur. >> commissioners ray hartz director of san francisco open government. waiting for the clock to reset still. you guys like to quote the government guide to us and so i would like to quote a little bit of it back to you.
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quasi judicial bodies must afford a fair hearing, the principle that the decision makers come to the meeting with an open mind prepared to hear both sides and to decide the case on the merits of the evidence presented and the governing law. in february and may i read two complaints that came before you against the city librarian. a conflict of interest is a set of circumstances that creates a risk that professional judgment or actions regarding a primary interest will be undually influenced by a secondary. including the duties of public office. it exists, if the circumstances are reasonably believed on the basis of passed experience and objective evidence to create a risk that it may be undually influenced by secondary risks. and so when the sunshine ordinance task force found the
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city librarian in violation of the sunshine ordinance twice, for the same matter, they had no conflict. they reviewed the law, they reviewed the evidence and found them in violation. now when they referred those to you here at ethics, for enforcement, i guess that they did not think about the third case which was against your executive director mr. st. croix for the exact same reason based on the exact same facts with the exact same finding. finding herrara in violation would have been in debtment to the interest of this body, and you know it. with three of the five members being attorneys i have continued to wonder if you considered to whether you could be impartial in those two cases i said this at the time. there was a six findings on the same subject. mr. st. croix was referred to the same violations. they violated my rights and the
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rights of other citizens of san francisco for a period of more than two years by advogating and censuring our public comments and preventing them to show up in the minutes, and yet you guys did not have any problem knowing that you had a case against your own executive director finding mr. herrara not in violation without looking at the facts and without reviewing the law, you did neither and i pointed that out in my case, because your investigators only looked at what they wanted to look at to let mr. st. croix off of the hook and give you an out. who will watch the watch man? >> any further public comment? on matters appearing on the
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agenda or not appearing on the agenda? >> the first order of business will be discussion. and possible action on a request for a waiver from the campaign and governmental conduct code section 3.222. and he is an architect that on occupies two of the architect seats on the commission and has requested the waiver, >> the details of the case are layed out in the staff memo. and mr. kass is here to answer any questions that you may have about his application. >> mr. smith? >> hello. i'm kass and we have spoken before. do you want me to cover my position on that at all? >> i think that will be appreciated. >> just to clarify a few things, my name is cash smith
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and one of the two architects on the commission and there are two architects on the civic review committee where we review all of the exterior architecture of any building on public property, which ranges from the stations and parks and recs and landscaping and library and any building, basically. and there is rio from the (inaudible) on the commission, and on the citizen review committee, but i chair that and i have for four years and i was appointed during the news and campaign and i just took my oath under mayor lee. so, any how, my firm ccs architecture is a 15-person firm and i have been practicing it for 16 years and i degree up in the bay area and went to uc berkeley and most of the staff
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lives here too. so what i am asking for, and one thing that i have noticed being on the committee, is the way, is the variety and number of projects that are put forth for our review. and how they are designed and i have seen through my kind of vision of it is kind of my vision of a public servant, on the committee as well as an architect who is an interested and improving the environment that it could be a win/win situation, if my firm were not in an conflict of interest to design certain projects that i would be asked to work on. >> and sometimes it would just be conducting. i don't think that it is very many. i don't think that it is the large ones. and who knows if it will or that if it will even materialize, and you know the rfq processes and rfp processes and the city has pretty good staff of architects and what
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used to be the bureau of architecture and now it is called the building and development and bcd, building and construction department. and then there is also private architects on the list and so what i am basically requesting is that if the waiver is granted my thumb would be on the sort of approved or one of the lists that could be solicited and then, i would have everybody in my firm other than myself manage it and i would like to say that i am 75 percent on it and i know that it is 40 percent above the threshold and i am way above that and of course i will recuse myself on the commission from voting on any of those projects. >> and so i look at it as a win/win, and you have a very dedicated skilled architect on the projects and plus you have me on the committee reviewing project as well. i totally understand if that looks like a conflict of interest and you can't grant
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that waiver and i get it. so that is my request today. >> thank you. >> commissioners? any questions or comments on this? >> yeah, i have a couple of questions, mr. smith, as i understand it from your letter, you have already served four years in this role on the arts commission; is that correct?? >> i have. and roughly for, four or something like that. i think that i am starting my fourth. >> the waiver that you are asking for relates to the new appointment by mayor lee, to that position; is that correct?? >> right. i was just reappointed and confirmed. so we will relate to the projects into the future under that current... >> in the past four years, you didn't ask for a waiver from
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the ordinance that... precluded you from presenting things correct? >> correct. >> because i... what concerns me, and kept the number of these, is i agree and i think appreciate your willingness to serve the public because you are performing a fairly important role and it requires the commission requires two architects to be on it. but i'm troubled by our so routinely granting a waiver when there is no showing by the mayor that he can't find someone else to appoint to it, who is prepared to perform as you did in the first four years, without seeking a wave. >> and i guess that my question is, why, why are you... why do
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you feel a need to continue on because i think i take it that you will not except it without the waiver,; is that correct?? >> that is not true, i would... with that... or without the waiver, it does not, it does not influence my decision whether to stay on the commission or not. my whole... i have always been, i am on the commission until i decide to do something else or if i really enjoy it. i think that we have... i was actually kind of surprised when i joined the commission i did not understand that there was a cdr and i was very surprised at how much impact positive impact that we can have. >> and you know, your letter that you talk about you talk about recusing yourself to talk about voting on the projects put forth to the civic design and that is the projects that your firm would be putting forth.
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>> just those ones specifically. and the interesting technicality that i do not completely understand but i think that john st. croix pointed out, is that the waiver not that it would be granted, but, can be granted if the charter of the arts commission requires two architects to be on it. which i thought sounded interesting and i kind of assume that it did not require that, but then i checked with shar ron and it is within the charter. >> that is one of the reasons. >> that allows it, if the commission, for example, the preservation, and there is one architect that has to be on it. >> and central to that, that might be a small thing, but i was just bringing that up again because it was interesting. >> yeah. >> mr. st. croix i have a
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question in my mind it is fuzzy. the waivers apply to the individual only? or to the individual and the firm which that individual represents? and by the same token the reverse of that? is that how it applies if in the terms if that firm was applying for a contract with the city? >> because, the gentleman... or the neighborhood principle that applies. >> thank you. >> i could sell my shares and go down to 19 percent. >> for the record. >> it sounds as if you really place a very high value on your commission seat? >> i do. it is an honor, i think that there are five of us on the civic design review and we get along well and i think that we are productive and it is
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surprisingly, you know, it is one of those things that you feel that they are doing something, i know that i think that even paid employees of the cities are in politics sometimes people like that, what do i do with impact. and i am like, i sit around and they go, well, we give some good advice to that architect or to that agency and they listen and they made the changes and look at how much. >> one of these days, we want to do one of these before and afters because we are get beat up by the mayor's office. look at the difference. i am going off the tang ent. >> commissioner andrews? >> thank you, mr. smith i wanted to hear a little bit more about your thought process and if we could, hear your thought process starting all the way back to four years ago. what amount of knowledge you
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had around this? this ordinance that was ultimately preclude you from responding to any rfq or any rfp? >> so i guess that the question is why now? what happened for the first few years and was it a consideration and were you knowledgeable of it and when did you become knowledgeable of it and how did that weigh into your deliberations to stay on the commission? >> in the beginning, i did not think about it because i did not know it was civic design
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review. i had no idea, because i never, i thought that we were being reviewing our murals and i didn't... i was sort of, you know i didn't know. then, as i, and then i was given the chairmanship and then as i, i think that i just over time, watched the way that projects got designed and managed and you know, you sit there and you think about it and sometimes you go that is the kind of project that my firm would do and sometimes you think, they are doing a really good job and that is great. and you see them being done in ways that you think that your firm could do better? and it makes you, i think, you know that might have been.
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and it was more of a rhetorical question to myself and after a while, you know, i think that projects could be done, some of these if given the opportunity could be done at a higher level of a better level. those, i might crash and burn on a projector hit one out of the park. but that is general, generally the way that i have seen it. and, i don't know, maybe it is setting an example sometimes. i mean on a committee, sometimes, we kind of get frustrated because we feel like the bar is not being set high enough sometimes. and there is no reason that is should not because we are a world class city and the
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projects are well-funded. there is not something that is making them and there are many projects that will never be good no matter what and there are a lot of city projects that i think could be really, really good. and so, i felt like i could actually not just a positive impact one way but the other. i have a lot of theories about it. i think that the projects should go out to cop advertisings more, and none of that is relevant. but i think that there are other methods besides what i am talking about today that could raise the bar. >> a quick follow up. >> if i could narrow the time line, i am believing that probably in the last two or three months all of this, you were knowledgeable of all of this and you thought that you gave thought to a second term? and in which, that came out as an affirmative to yourself and for mayor lee. but you were fully knowledgeable of this as well.
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did you have this conversation with yourself and did you have this conversation with folks in your firm enough to say you ultimately would be weighing the two, right? so you were knowledgeable of both of these, if i stepped forward and go for another four-year term. this preclusion still is there and i am going to hedge my bets and hope for the best and then go to the commission, i was just wondering how you ultimately got there over a period of, and i am guessing in the last couple of months that all of this... >> yeah. because i enjoyed being on the commission a lot, i never, i mean i know what you are asking, i never really sat down with myself and said, make a decision, which one would want? i never did. i mean i know for a fact that if i were not on the commission and there was no conflict of
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interest, i know that i would probably be quite assertive in trying to get certain work because it would you would sort of be an idiot not to. but i never felt like that was a trade off at this point. and you know i don't see that becoming a trade off. and i have put a lot of work and i don't need to make more money. my life is very interesting. and it works pretty well and i like actually, i really like the balance that being on the commission gives me. it is a different world of design and all of that and i don't think, i don't think that i would trade that for just a few more projects. it does not fit into my big picture, right? and what i did originally, and it was probably more than a few months ago, but it might have been 6 months ago, but i i didn't know that there was a conflict of interest, i figured there was but i never got out
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the charter and read, but i checked with vicki who used to be staff and said what is up? is this a conflict of interest if i were to work on some of the projects that is when the fire stations started coming through, those are... i felt like i just had like a little extra interest in fire stations when i saw the way that they were coming through and what they did. initially it was not a conflict, i was not sure and i wanted to be really safe and i checked with john and he said no, there would, and so we went through this. give me a waiver and i am leaving and i never thought about it that way either >> i too would like to thank you for your service on the commission it sounds as if you are fully engaged and enjoy it very much. that makes a big difference.
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i would dare venture that being the chair of the civic design review committee is some ways a competitive advantage for you as an architect. because you are aware of the projects and the procedures necessary for any firm and that is involved in these things. so, to some extent, you already have an advantage. but, what i would like to do now, is to open it up to any comments from the public? >> yes. >> sounds good, thank you. >> ray hartz director of san francisco open government as you figure out i go to a lot of boards and commissions and i would like to talk about an incident since the requestor of the waiver brought up the issue of being appointed and serving
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on the arts commission so forth. the fact that really does mean that he took an oath of office to support and defend the constitution of the united states and that of the state of california, and he has been through the sunshine ordinance task force training at least three times. signed at least three affidavits that may be more at this time. and yet, this is a matter of public record at a public meeting of the arts commission, mr. peter war field executive director of the library users association got up to make comments about the fact that they were failing to follow the sunshine ordinance, and while i know under the ordinance, members of the boards and commissions were allowed to respond and they are not allowed to be abusive and i would say that the comments that there smith made to mr. warfield were abusive and i would suggest that you go back and review those comments. one of the comments was i don't have to listen to this shit from you or from someone like
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you, and then he referred to mr. warfield as whether whoever you are and then he came out at the end and said that i am going to do what i can to make sure that you are not involved in things like this any more, which i see as a threat to say that i am not going to let you participate in public comment. now when you have someone who takes an oath, takes the training multiple times and signs a number of agreements to follow that training and follow that law, how could you trust that person to be a good willed person who is going to actually recuse himself in cases where he should. i have questions about it and you should go back and review the testimony and you can look at the public arts commission and there were more things that he said and i did not bring my notes with me tonight. the thing about this is while he was good enough to this this in public and insult mr. warfield on a number of points
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in public, he is at no time ever apologized to mr. warfield let alone in public for having abused his position as a member of the arts commission. and as a result, i don't feel he deserves to be on the arts commission. i question why he is still on the arts commission, because the only thing that i have gotten from the executive director mr. tom decaney is that they talked to him. i don't think that they would have had to talk to him to have him know that he is not allowed to be abusive to someone who was getting up and making legitimate public comments and i don't think that anybody who would do that in public and fail to apologize in public lacks a certain level of integrity. >> and any further public comment on this matter? >> if not, commissioners any further questions or comments? >> well, i just wanted... and for those who are more
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experienced with this, one i see that we write at least for the staff says that we have never taken up this specific waiver. >> yes. >> and as i read it, is says that the ethics commission may waiver for any officer who must be appointed represented in the profession, it seems to me that for as much as i have an understanding of it, it falls squarely within it and as we talk about it, i would want to hear, reasons why we would and then reasons why we would not. and is there something extraordinary that we are missing here that keeps us from taking this under full consideration or if we need other information on it? because it seems like in reading through the ordinance itself and reading through the waiver and in reading through
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the requirement for the arts commission, and having two professionals on there and with mr. smith holding one of those positions, i was wondering if how close or less close this is to one of the garden variety requests that this would be or how exceptional this request is. since we have not picked it up. >> in general, waiver requests are post employment. and the city officials, and the city officers are enjoying some certain kinds of contacts and activities with the city for a year after they leave. so, when waiver request generally come to this, someone wants to demonstrate that they want to participate in a prohibited activity, and then say, what, but there is not a conflict of interest and so i should be allowed to do it.
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some have been denied and most of them have been approved. >> we seldom get requests and within this particular type of waiver and we never have had this request and will people want to remain as part of the city board commission staff, whatever? and conduct what would normally be considered a conflict of interest activity? >> i have no further comments except to say that my position on this and decision on this will be without regard to the accusations that have been involved against mr. smith which i do not think are appropriately rephrased. but i have got to say that i maybe wish there were more
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people but i am inclined to deny the waiver. under these circumstances, i think absent a showing that that position could not be filled without somebody asking for a waiver, i'm not disposed. the voters said that they wanted this provision, and i don't see a reason to wave it. >> my own view is that we, to answer, your question, commissioner andrews, at least, during my tenure have not addressed this kind of request, and as he said most of the requests are the people who are leaving a commission and in those cases i have tempted to feel that i do not want to deprive people who have left city government

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